Informed consent and access to gender-affirming treatment for children in South Africa

Abstract

Informed consent for medical treatment is a developed legal concept in South African common law; the elements of which have been clearly set out by our courts. The overarching principle is viewed as a collaboration between medical practitioner and patient to understand the medical prognoses, medical advice and recommended treatment as well as the risk associated with such treatment. It should be done in such a way that the medical practitioner is not viewed as the “gatekeeper” of the medical treatment, but that the practitioner has confidence that they have provided the necessary information to enable the patient to decide. Where children are concerned, there is a greater duty to ensure informed consent for medical treatment is obtained in a manner that safeguards the short-term and long-term, best interests of the child, while also respecting the evolving capacities of the child. This paper examines the rights of children to consent to gender-affirming treatment and explores how this issue could be dealt with in an approach that recognises the autonomy of children while ensuring that their short-term and long-term best interests are upheld. The paper argues that the provisions of section 129 of the Children’s Act 38 of 2005 and the Gender Affirming Healthcare Guidelines provide sufficient guidance as to how informed consent for gender reaffirming treatment for children should be obtained in line with their evolving capacities.